The Regulation of Cyberspace Activity - Essay Example

 Law and technology Introduction: Information is the new mantra that spells success in the modern world. The Internet has been described as “a decentralized, global medium of communication comprising a global web of linked networks and computers. The availability of fast and inexpensive broadband connections and shared computing resources have resulted in an increasing move towards digitilization of content due to the facility of storage and mobility. Vast amounts of information can be stored in compact discs and microfiche, while tools of interconnectivity have dissolved global boundaries. For example, Ray Noorda of Novell in the United States realized that “non proprietary, clone like products for the desktop” was what was called for in the present day with the facility of the Internet, because through this aspect “the world would be tied together in some way.” When Noorda first joined Novell, a proprietary networking product named Sharenet was available, which was a box that had a 68000 based computer. Noorda used this as the basis to explore further how the box could be ported into other environments to make a server out of a PC. In this manner, Noorda was able to develop Netware, which was portable and could be used anywhere in the world. As a result of such technological developments, most kinds of information today are preserved as digital packets and most commercial transactions are increasingly shifting to the electronic medium, thereby creating a variety of other problems through misuse of the medium. The pervasiveness of the electronic medium and the facility of connectivity across geographical boundaries through the Internet have resulted in a vast space where users communicate, that may be referred to as cyberspace. While the law in a country generally functions as a regulatory mechanism to control and coordinate the activity that takes place, the same facility is not afforded by cyberspace, since no distinct geographical boundaries or jurisdiction can be established to determine which law must take effect. Similarly, the anonymity of users is well preserved in the electronic medium, which further complicates the issue of control and prevention of illegal activities. Digitilization: The emergence of the Internet has globalized the business environment and dissolved boundaries between nations, giving rise to issues of legal boundaries of digital property. Intellectual capital is important and the use of business worldwide webs spells power. Content is now being transferred over electronic waves packaged in bits and bytes that are instantaneously transmitted through vast distances. Through the Internet, it has become possible to create uniform, digital content that can be circulated all over the world, since information travels in data packets that may or may not be encrypted. The phenomenon of globalization is producing a global culture that is evolving through a removal of trade barriers so that such digital information can be freely exchanged, eliminating the regional divisions in content creation that existed prior to the evolution of the electronic medium. Mitchell has examined the media sphere as the environment within which the transmission of messages and other types of communication takes place and points out that cities of the 21st century could possibly be characterized as “interlinked, interacting, silicon and software saturated smart, attentive and responsive places.” Physical boundaries have become less meaningful as the printed and spoken modes of communication have yielded to connectivity through communication over electronic waves. Digital cities are comprised of electronic networks and the linking of services, so that individuals and business can access information and services and transfer them with as much ease by transferring them into the electronic data packets that travel through broadband connections. Broadband and the Internet, added to graphical capability and ease in transmission of various kinds of materials through advanced software such as BIT torrent for packaging audio and video content have resulted in dramatic innovations in the kind of products that are being used today. Mitchell (2003) examines the changing face of wireless communication over the past one hundred years and points out how networks have been scaled up while the equipment required for such wireless transmission and reception has been correspondingly scaled down. For example, digital content such as music and other copyrighted material is now being made freely available online through the use of OSS software and is increasingly being streamlined for a world audience rather than being limited by a primarily local outreach as was the case earlier. The value of an intangible asset such as an IP asset is primarily determined by its potential income generation possibilities in the market, however the degree of control exercised over access to the product is compromised by the enormous capacity for copying that is afforded by the digital environment, despite protective measures outlined below. The PPTP (Point to Point Tunneling Protocol) is an extension of the standard Point to Point protocol used in the Internet and is used to transmit IP packets over links. The Layer 2 Tunneling Protocol also utilizes data encryption and digital certificates but provides for additional computer authentication; thus it provides some advantages over with authentication and data confidentiality. IP Sec offers a higher level of data protection and encryption and authentication of data and users is more exhaustive, using the Internet Key Exchange Protocol and digital certificates. The IKE applications could be of two kinds – on the one hand, they could provide protection and authentication of identity under the main mode when a session is initiated or use the aggressive mode, which is a faster process but does not offer identity protection for the user. Further security may be provided through the use of Secure Sockets Layer protocol and the use of the MPLS Primer in VPN networks. Multi protocol Label Switching functions by connecting IP traffic to the connection networks such as ATM, Frame Relay or optical networks. It functions in a similar manner to the mail system where all mail received is scanned and then bar coded, which speeds up the process of mail delivery because the bar coded mail can be sorted faster by just scanning without further analysis. Cyberspace regulation: The ambiguity in jurisdiction and the ease of transfer and hacking of digital material poses enormous problems in terms of regulation of content and maintaining a control over where, when and to whom it is transmitted, owing to the nature of cyberspace. Cyberspace has been defined as “the total interconnectedness of human beings through computers and telecommunication without regard to Physical geography.” Lessig has pointed out some of the hype that exists about cyberspace, as follows: “cyberspace is unavoidable and yet cyberspace is unregulable. No nation can live without it yet no nation will be able to control behavior in it.” The amorphous nature of Cyberspace presents new challenges, apart from the increased facility of copying which threatens Intellectual property rights. Decentralized file sharing makes it difficult to pinpoint the source of infringement of copyright. In response to the threat of copyright infringement suits, the Creative Commons Project, set up by Lawrence Lessig has presented a solution through the availability of special licenses which are simple and easy to obtain, whereby the owners of copyrighted property can elect to make their material available according to terms for which they lay out the parameters. In this way, access is provided to users, provided they duly credit the creator of the property and adhere to minimal terms specified by him/her. Since it is difficult to clearly delineate fair use vis a vis pirated use of copyrighted material in an online environment where duplication cannot be easily tracked, it poses problems for regulators since no uniform law that applied across the globe have been implemented. The use of TPM’s by private companies enables tailoring of the access codes according to their requirements and the introduction of the Digital Milennium Copyright Act also holds ISP providers liable for copyright infringement through downstream liability. However, the practical difficulties in execution remain. Regulating e-commerce: The evolution of the electronic medium for transacting business creates a complex set of legal issues that are at variance with established legal precedents. Challenges are posed to confidentiality of financial information exchanged over the net and the security risks due to ease in money laundering and misappropriation. Since software development has been a relatively new area of creative product development, it has been accessible to a large number of users, fairly easily. However, utilizing software such as Linux which exist under the purview of legitimate GNU licenses is permissible, without contravening copyright. However, this has raised legal issues of protection of the rights of the owners of the intellectual property and their right to economic benefit from the fruits of their creativity. This is however, pitted against public values and the need for citizens to access digital content in a spirit of education and innovation. Online transactions are characterized by click-wrap agreements, where the buyer accepts the terms of the contract by clicking on the icon that says “I agree”. In the United States, click-wrap agreements and licenses are enforceable in the United States in certain circumstances. The problem that arises in this case is that from a legal perspective, terms are not clearly displayed to the buyer before purchase of the product. In some cases, where a browse-wrap agreement is concerned the buyer is not even required to negotiate an I agree icon before purchasing the product, neither is he forced to view the terms of contract, which raises the issue of questionable contract and whether in fact, a contract has been entered into at all. In the case of Specht v Netscape Communications Corp and AOL, the browse wrap agreement does not give rise to a valid contract. In the case of ProCD Inc v Zaidenberg, the Court held that click wrap licenses were enforceable, except in certain circumstances; “Shrinkwrap licenses are enforceable unless their terms are objectionable on grounds applicable to contracts in general (for example, if they violate a rule of positive law, or if they are unconscionable).” This principle has also been validated through the UCITA, which is a model law operational in the United States whereby States operate according to a sale of goods regime - where layered contracting is encouraged. UCITA sets out the basis upon which a software license can be enforced although the terms of contract may not be disclosed to the customer and this has generated considerable controversy. Another aspect of electronic communication which has proved tough to regulate is the issue of SPAM. The Internet Engineering Taskforce is the source of RFCs that govern proper Internet use and are derived from social and technical guidelines, as laid out by the RUN (responsible Use of the Network) Working Group. However, in the U.S. and Canada, there has been a considerable amount of judicial consideration of the legalities involved in the Spam issue. For example, in the Canadian case of Ontario Inv v Nexx Online, the plaintiffs contended that the deactivation of their mailings constituted a breach of contract that they had with Nexx. However, the Court in deciding this case, held in favor of the Defendant, since the Plaintiff’s mailings constituted bulk, unsolicited mailings which violated general guidelines for Internet use. The provisions of the contract that Ontario had with Nexx stated that they would follow generally accepted Netiquette when sending e-mail or posting messages. While there is no written set of rules that constitutes Netiquette, a general code is developing based upon good neighborly conduct while using the Internet, and the sending of bulk, unsolicited e-mail is considered to be an “inappropriate and unacceptable” use of the Internet. This appears to be a general consensus that is emerging as more and users are expressing antipathy to being flooded with junk mail. For spammers, this is an irresistible way to solicit business, since it is cheap and anonymous, with a massive outreach, since the number of Internet users has reached 655 million by the end of 2003. The Spam problem has raised the legal issue of trespass and violation of First Amendment rights in the United States. The two cases of Cyberpromotions v AOL and Compuserve v Cyberpromotions, raised the issues of trespass of private property and violation of First Amendment rights. There are also issues of damages to be considered, since ISP providers lose business from their customers who are irritated by SPAM. While opt in and opt out facilities are technically available for users of the Internet to prevent receipt of SPAM, it still constitutes a considerable problem which is being subjected to additional policing and is likely to emerge as a significant legal issue which will require legislation all over the world. It is a difficult issue to legislate upon, since it involves the problems of territorial jurisdiction in terms of bringing an action against spammers. Additionally, there is also the problem of serving notices upon defendant spammers who may function anonymously, under false e-mail addresses or names and they can be difficult to track down. In the case of EBay Inc v Bidder’s Edge, the issue involved was one that was the reverse of the Spam issue, because this was a case where Bidder’s was using information available on Ebay and was engaged in a process of reverse pullout of information for its own business advantage. This case also involved issues of trespass, which has emerged as a significant legal issue in the context of e-transactions. Automated query programs, robots and web crawlers perform the function of pulling out information from websites for economic and business gain without the knowledge or permission of the websites in question. This also brings up issues of damages suffered by one party through the unauthorized use of its resources by another party. In the case of Ticketmaster Corp v Tickets.com Inc, the Court stated that a computer was piece of tangible property, which operated on electronic impulses and held that “…if the electronic impulses can do damage to the computer or to its function in a comparable way to taking a hammer to a piece of machinery, then it is no stretch to recognize that damage as trespass to chattels and provide a legal remedy for it.” On similar grounds, the Court also held in favor of EBay in the case of EBay v Bidder’s Edge.. Therefore, issues of violation of privacy, trespass and damages are equally applicable in cyberspace, although the manner of trespass or violation of fundamental rights to privacy and confidentiality of one’s personal information may occur in a different manner. Regulation of criminal activity: Increasing globalization has seen Internet use widening to encompass a new sphere of activities facilitated through the electronic medium. Wasik has highlighted the potential offered by the electronic medium for the commission of crimes through unauthorized access to sensitive information. The pervasiveness of Cyberspace results in the availability of large quantities of information which can be a weapon of control in the wrong hands, for example of terrorists. Information and communication technology (ICT) is used by unscrupulous individuals to distort or modify information or to spread terrorist propaganda in a manner that is likely to disrupt the normal functioning of a Government/country and create terror and panic through the weapon of threat. Regulating cyber activity to prevent criminal activity therefore poses an enormous challenge. Such cyber crimes involve combat with an unseen enemy, anonymous in the e-maze of the Internet, who is at an unspecific geographic location that cannot be determined and may not be organized in the traditional hierarchical framework which law enforcement agencies are familiar with, so that the focus of the attack becomes indeterminate. An American Government Report released in 1997 has articulated the threat from cyber terrorist criminals as follows: “Today the right command sent over a network to a powered generating station's control computer could be just as effective as a backpack full of explosives, and the perpetrator would be harder to identify and apprehend … A personal computer and a simple telephone connection to an Internet Service Provider anywhere in the world are enough to cause a great deal of harm”. It’s now possible to achieve individually, using minimal resources, a range and scope of terror generating activity that would have previously necessitated the availability of a vast amount of resources and several people. Since most commercial and Government activity has now become e-based, terrorists can cause a great deal of damage by hacking into the databases of Government organizations, because information technology and the use of the Internet “creates vulnerabilities that can be exploited by individuals, organizations and states.” The problem of regulation through laws: The regulation of cyberspace activity therefore presents a problem that does not conform to the traditional framework of law. Lawrence Lessig has identified the regulation of cyberspace through law, norms, markets and architecture. In the case of cyber terrorist websites, it is the availability of the target market that has resulted in the proliferation of such activity. Norms will affect the kind of product that is traded in the cyber marketplace and the norms governing the operation of terrorist websites are conditioned by the common beliefs shared by terrorists and the facility to cheaply and effectively reach out to millions of people. As pointed out by Lawrence Lessig, technology itself provides the means to regulate access to information in the digital environment, which he presents as the “code of law” But this digital monitoring, which may be classed under the heading of anti-circumvention law, which has been largely developed by private companies and which they seek to get enacted as legislation, needs regulation so that ordinary citizens are not locked out in their quest for information. The concerns about over-reaching anti circumvention law was expressed in the decision that was handed down by the Court in the case of Stevens v Kabushiki Kaisha Sony Computer Entertainment. Brian Fitzgerald has also pointed the ambiguities inherent in the exercise of legislation on anti circumvention in Australia. Since terrorist activity targets Government systems, the United States has “air gapped” some of its systems such as those used by the CIA , the FBI and the FAA wherein the systems are physically disconnected from the Internet, so that it becomes inaccessible to outside hackers. This only serves to highlight the need to remove information from cyberspace in order to effectively protect it, since it cannot be regulated easily. To regulate and control illegal cyber activities, Greenleaf’s views supported by Lessig’s framework proposes code as the most pervasive and effective constraint in Cyberspace. Law is just one of the aspects of the four modalities of regulation, functioning as the silent, implied threat of punitive action for violation of the norms and rules governing cyberspace. “The architecture of cyberspace is neutral”, therefore it can be molded to function as a regulatory mechanism through the implementation of code that limits and restricts online activity. Governments control cyberspace architecture to quite an extent through legislation, while ISPs, through the judicious use of code regulate user activity to some extent. To address the issue of removal of legal obstructions to e-commerce, an internationally acceptable set of rules has been framed under the UNCITRAL Model law, which is regulatory in function and is based upon the principles of (a) functional equivalence, which means that a paper based transaction and a digital transaction should be considered equal in the eyes of the law and (b) technology neutrality which means that no discrimination exists under law for the various forms of electronic communication. Under the TRIPS international agreement, software is protected on par with literary texts, under copyright law. However not all digital property is included in the constitutional definition of intellectual property by international standards set out through the TRIPS agreement. Therefore in Australia for example, in response to increasing digitization, amendments were introduced which have strengthened the prohibition of falsely claiming ownership of intellectual property. As opposed to this economic model, there is the developing issue of accessibility of information to the public as opposed to economic efficiency. Greenleaf has examined the relative merits of currently existing measures for protection of privacy in cyberspace, such as the European Union Privacy Directive, the OCED privacy Guidelines and Article 17 of the International Covenant on Civil and Political rights. He proposes that a uniform standard of privacy for digital information is developed which is valid over global territories, while individual states can introduce stricter regulation within their territories. He is of the opinion that cyberspace is better regulated by law – not through its limits as the regulating factor; rather through the exercise of the law in modifying the natural architecture of cyberspace that will render it a more effective tool. Cyberspace architecture is relatively plastic, and the law can be applied to require changes or modification of the software, codes or minimum standards. One example is the Telecommunications Act of 1997, which requires that carriage and service providers provide the ability to decrypt traffic but does not hinder individual users from encrypting their messages. This is one example of law regulating the architecture without interfering with end users or dealing with ambiguity in controls. The law modifying the architecture rests on international standards, posing the threat of action for non compliance with architectural norms without the complexities imposed by unpredictable and uncontrollable forces in cyberspace. In Britain, legislation introduced by Government to increase surveillance powers of law enforcement authorities, allowing them to access the communications records of telephone and Internet users, has been contested by Jim Gamble of the National crime Squad as having the potential to attract claims of illegality under the Human Rights Act. The Regulation of Investigatory Powers Act of 2000 in conjunction with anti-terror legislation has been deemed to be intrusive in the field of human rights and opponents have charged that there is a need to strike a better balance between protecting the privacy of individual citizens vis a vis catching and prosecuting terrorists.” Workplace surveillance has also been introduced, to gain access to e-mails sent by employees to pre-empt illegal cyber activity. However, this has also been contested on the basis that “privacy is a guaranteed human right -- at home and at work” and “workplace monitoring is an unnecessary infringement on that right.” Applying Lessig’s four phase framework of cyber architecture, this regulatory activity is carried out through the manipulation of cyber architecture code, such that Government and private employers are able to monitor and regulate undesirable cyber activity. Conclusions: On the basis of the above, it may be concluded that the digitalization of information has produced a highly amorphous medium known as cyberspace where territorial jurisdiction is difficult to apply. Through the facility of anonymity afforded by the Net, combined with the inexpensive nature of cyber activity, criminal elements are making use of this medium to carry out illegal activities. The perpetrators are difficult to prosecute because their exact identity cannot be pinpointed, although Governments have introduced some measures to tackle the plethora of problems spawned by the proliferation of online activity. Experts have suggested measures to modify the architecture of cyberspace to deal with the menace, while there is also a simultaneous development of net etiquette, which results in some minimal controls. Cyber terrorist and other illegal activity has resulted in manipulation of the architecture of code to affect the constraints of law. There is a need to clamp down vigorously on such activity, however in view of the impact on individual liberties, perhaps lawmakers need to consider modifications of the law to reinstate the values that have been displaced by the emerging architecture of cyberspace as shaped by terrorists and other criminal elements. While the framework of the law is being modified through the reconfiguration of cyberspace and the introduction of minimum global standards in privacy and cyber activity, it appears certain that any measures that will ultimately prove effective can only be those devised on a global consensual basis, while regulatory clamps may have to devised within the structure of the medium itself so that they are imposed automatically, rather than being imposed through external laws. 4000 words Bibliography Books/Journal articles/websites: * Bernhut, Stephan (2001). “Measuring the Value of Intellectual Capital” Ivey Business. Journal., Mar.-Apr, at pp 16 * Canadian Security Intelligence Service Public Report, 1996. Part IV (Information technology). [Online] Available at: http://www.csis-scrs.gc.ca/eng/publicrp/publ1996 e.html * Fitzgerald, B, 2005. “The Playstation Mod Chip: A Technological Guarantee of the Digital Consumer’s Liberty or Copyright Menace/Circumvention Device?” 10 Media and Arts Law Review 89. * Fitzgerald, B. “Creative Commons (CC): Accessing, Negotiating and Remixing Online Content”, in J. Servaes and P. Thomas (eds), Communications, Intellectual Property and the Public Domain in the Asia Pacific Region: Contestants and Consensus ; available online at: Read More